Wilkins v Toll
[2011] VCC 1490
•6 September 2011 (Revised)
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-00009
| JAMIE KENNETH WILKINS | Plaintiff |
| v | |
| TOLL HOLDINGS LTD | First Defendant |
| and | |
| TOLL IPEC LTD | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 and 29 August 2011 |
| DATE OF JUDGMENT: | 6 September 2011 (Revised) |
| CASE MAY BE CITED AS: | Wilkins v Toll & Anor |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1490 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COPENSATION – Section 134AB Accident Compensation Act 1985 – injury to right and left shoulders – whether one body function – whether the plaintiff suffered 40 per cent loss of earning capacity
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison SC with | Ryan Carlisle Thomas |
| Mr I R Fehring | ||
| For the Defendants | Mr N Y Rattray | Gadens Lawyers |
| HIS HONOUR: |
1 On 16 March 2006, in the course of his employment, the plaintiff was manoeuvring a large pallet with a pallet jack. As he was dragging the pallet jack down the tray of his truck to get it to the loading bay, he felt sharp pain in his right shoulder, spreading down his arm. Subsequently, pain also developed in his left shoulder. He was diagnosed as suffering a lesion to the biceps tendon in each shoulder and required surgery, to the left on two occasions. He returned to work on modified duties, and then subsequently worked for another employer in lighter duties. He has not worked of recent times.
2 He claims that as a result of injury to his shoulders, he has suffered a reduction in a range of domestic, recreational and social activities. He takes regular pain-relieving medication.
3 This is an application for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment on 16 March 2006.
4 Mr Harrison, on behalf of the plaintiff, identified the body function said to be lost or impaired as the left and right shoulders. In the event that both shoulders were not accepted as the one body function, he relied upon the left shoulder, which he said was the more seriously affected of the two.
5 The application is thus brought under sub-s.(a) of the definition of “serious injury” contained in s.134AB(37) of the Act and leave is sought in respect of both pain and suffering and loss of earning capacity.
6 At the outset, Mr Rattray, on behalf of the defendants, said the main focus of the defendants’ response was in respect of economic loss, and not pain and suffering. In submissions, he did not address any argument to the issue of whether the plaintiff achieved the statutory level in respect of pain and suffering. In my view, this approach was entirely appropriate in the circumstances and by reason of the matters to which I will refer, I am satisfied that the consequences to the plaintiff in respect of pain and suffering do reach the “very considerable” level.
7 This judgment will be largely confined to determining whether the plaintiff has suffered a loss of earning capacity as prescribed by s.134AB(38)(e)(i) and s.134AB(38)(f) of the Act; that is, whether the plaintiff has suffered a forty per cent loss when a comparison is made between his “without injury” earnings in that part of the three-year period before and after injury as best reflects his earning capacity, with his earning capacity at the present time from suitable employment. Sensibly, the parties agreed that the plaintiff’s “without injury” earning capacity was $50,000 gross per annum.
8 The plaintiff was the only witness called to give evidence and be cross- examined. In addition, affidavits of the plaintiff and his partner, medical and radiological reports, and reports of vocational assessors were tendered into evidence. I have read all the tendered material.
Relevant Background
9 The plaintiff was born in April 1969 and is now aged forty-two. He was educated to Year 9 and then worked as a house painter for about ten years. He also worked on a part-time basis running a mobile discotheque business. He started work as a truck driver in 2001, and commenced permanent work with the defendant, Toll, in 2004. He drove a seven tonne truck, generally in the Geelong area.
10 He enjoyed fishing, and would go fishing for recreation each week or so. On occasions he would go for long weekends with friends on fishing trips. He attended ten-pin bowling monthly. He worked in the garden and mowed the lawn. He had a passion for repairing old cars, which took up a significant proportion of his spare time. He would do much of the mechanical work himself.
11 In 1996, he suffered injury to his right shoulder while working for McLean Services. He has very little recollection of the injury and if there was any time off work. He said it was only for a short period. According to a report from a general practitioner, Dr Trosky, of 21 October 1997,[1] the plaintiff complained of many months of pain and clicking in the right shoulder when seen at that time. He was referred to Mr Campbell Brown, orthopaedic surgeon, who advised the clicking sensation was probably a dislocating long head of the biceps tendon. He thought the plaintiff would probably require surgery.[2] No such surgery took place. An ultrasound investigation of the right shoulder of 29 April 1997 concluded:
“No sonographic features of rotator cuff pathology but certainly the
palpable click may relate to the AC joint”.[3]
[1] PCB 29
[2] DCB 4
[3] PCB 18
12 In any event, the plaintiff returned to full-time painting duties. He had no other problems with his shoulders, in particular, the left shoulder.
13 According to a chiropractic questionnaire dated 28 July 1999,[4] the plaintiff complained at that time of pain between his shoulders.
[4] DCB 11
14 A report of his then treating general practitioner, Dr Fitzgerald,[5] referring to the history taken when he saw the plaintiff after the incident on 22 March 2006, said:
“He had sustained similar injuries at least a dozen times before about once per month but had not previously reported it. Jamie was paying for physiotherapy himself and usually settled temporarily after physical treatments … .”
[5] PCB 31
15 In evidence, the plaintiff said he had no recollection of pain in the left or right shoulder immediately before the subject incident, although admitted he did have problems with headaches.[6]
[6] T 17
The Injury and its Consequences
16 On 16 March 2006, the plaintiff was unloading a pallet of heavy material from his truck at a client’s premises. The pallet weighed approximately 650 kilograms. He moved the pallet by way of a pallet jack, and was dragging it along the tray of his truck to the loading bay. After he moved the pallet a short distance, he felt a sharp pain in his right shoulder, with pain spreading down his arm. He kept working and only reported the incident some days later, as he felt it might settle down.
17 On 22 March 2006, the plaintiff went to see his general practitioner, Dr Veronica Fitzgerald, complaining of right shoulder pain. As earlier stated, he gave a history, according to the report,[7] of “at least a dozen times” suffering similar injuries. She certified the plaintiff as unfit for work over several weeks, and then he returned to employment on light duties.
[7] PCB 31
18 Dr Fitzgerald referred the plaintiff for an ultrasound examination of the right shoulder[8] which showed a slight thickening of the subacromial/subdeltoid bursa, but no discrete tear. The report concluded that in the right shoulder, there was evidence of supraspinatus tendonopathy.
[8] DCB 137
19 Dr Fitzgerald referred the plaintiff to Dr Ma, rheumatologist, whom he saw in May 2006.[9] He received a history:
“He described two separate incidents, one on the 17th of March, an[d] the other approximately five weeks later, during which he developed right shoulder pain while trying to pull the pellet (sic). He could now hear cracking when he abducts his right arm. He however has not been experiencing pain in the neck or pain when lying on the right hand side. I understand he has been on Workcare and has not been driving.”
[9] PCB 76
20 Dr Ma noted the x-rays and ultrasound results which suggested supraspinatus tendonopathy. He considered the plaintiff may have suffered a tear to the shoulder capsule and arranged an MRI scan. That scan, undertaken on 14 June 2006,[10] showed:
[10] PCB 19
“1 Abnormal signal extending into the superior and posterosuperior
labrum, consistent with a SLAP tear.2
Low grade tendinopathy of the distal supraspinatus but no evidence of a significant rotator cuff tear and no findings particularly suggestive of an impingement.”
21 The plaintiff remained working for Toll on light duties, the work consisting mainly of office-type work. He attempted to return to some driving duties, but said that he was unable to do so because of pain.
22 The plaintiff was then referred to Mr Campbell Brown, orthopaedic surgeon of Geelong, on 24 July 2006.[11] He inspected the MRI scan, which he said demonstrated a probable SLAP lesion (a lesion of the biceps tendon where it inserts into the glenoid).
[11] PCB 81
23 According to his affidavit,[12] the plaintiff said that by the time he stopped work immediately after the incident, the “difficulties” had spread to his left shoulder. According to the report of Dr Fitzgerald,[13] it was not until September 2006, when the plaintiff complained of left shoulder pain. According to the report of Mr Campbell Brown, upon initial presentation on 24 July 2006, the complaint related to the right shoulder. When he further examined the plaintiff on 5 September 2006, the plaintiff complained of a very similar pain to the left shoulder.[14]
[12] PCB 6
[13] PCB 31
[14] PCB 81
24 Dr Fitzgerald’s view was that the left shoulder was:
“… clearly also work-related even if there was no specific injury, as the SLAP pathology on imagining is almost the same and the repetitive pellet (sic) jack pulling of unreasonable weights is bound to have affected both shoulders eventually.”[15]
[15] PCB 32
25 On 24 August 2006, Mr Campbell Brown operated on the plaintiff’s right shoulder. He debrided degenerate labral and biceps lesions, undertook a subacromial bursectomy and a soft tissue decompression of the subacromial space by dividing the coracoacromial ligament.
26 On 23 November 2006, Mr Campbell Brown operated on the plaintiff’s left shoulder. According to his report,[16] no SLAP lesion was seen, but Mr Campbell Brown performed a bursectomy of his left subacromial space, as well as a decompression of his subacromial space with an acromionectomy.
[16] PCB 82
27 After surgery, the right shoulder improved significantly. However, the left shoulder did not improve. According to the evidence of the plaintiff, the left shoulder is still deteriorating. Dr Fitzgerald, in a report of 6 June 2007, said:[17]
“Unfortunately Jamie has had ongoing problems with pain, clunking and restricted movement in his left shoulder despite the surgery and light duties (van driving with 5kg weight limit). The right shoulder is functionally almost to full capacity … . “
[17] PCB 34
28 In 2008, Dr Fitzgerald noted ongoing pain in the left shoulder and received a history from the plaintiff that even minimal duties were intolerable and his shoulder was only assisted with complete rest. At that point, she considered the plaintiff did have the capacity to return to suitable employment, which would be limited by recurrent aggravations of pain and stiffness. In her final report of 5 August 2010,[18] she said:
“Leaving aside psychological consequences, I cannot say whether the physical injuries alone caused Jamie to be unfit for pre-injury duties as it is so long since I have seen him, but I do know that he had not ever fully recovered after surgery and has had difficulty with any physical jobs.”
[18] PCB 39
29 The plaintiff remained working with Toll on lighter duties until early 2007. He resigned because he said his employer was not sympathetic to his condition and his need for lighter duties. He found alternative work with Synergy Asset Management through a friend, repairing public telephones. The job was light and essentially the plaintiff was able to cope with the duties, albeit some of the heavier lifting was difficult. However, at this point he was living in Geelong and the job was in Ballarat. The driving to and from work aggravated pain in both shoulders, particularly the left. He resigned in February 2009. There is a conflict in the evidence upon the circumstances of his resignation. According to statements of Mr Rick Anderson and Mr Dinny Adams of Synergy, he did not complain of any injury or shoulder difficulty in the course of his employment and “abandoned his employment and left his work vehicle parked by the side of the road with the keys in it”.[19] According to the evidence of the plaintiff,[20] he explained that he told Synergy he had a shoulder injury before he started the job and that was the reason he got light work. When he left employment, he told them the reason and did not just stop and leave. He accepted that a part of the reason for leaving was that his marriage had just, at that time, broken up, but also that the driving was too much for his shoulders.[21] He denied abandoning the vehicle.
[19] DCB 326, 328
[20] T 24-25
[21] T 26
30 While it is not strictly necessary for the purposes of this application to determine the conflict of evidence on this issue, I prefer the version of events given by the plaintiff. Firstly, I found the plaintiff a straightforward witness, giving a fair and honest account of his injuries and the difficulties they imposed upon his life. Secondly, the statements of Messrs Adams and Anderson are remarkably similar in form and content. They each carried the flavour of being prepared by another person, and it was that other person’s words, rather than those of the respective witnesses. I found the statements unsatisfactory for that reason.
31 During 2009, and after leaving Synergy, the plaintiff obtained casual gardening employment with a relative. He worked several days per week on a limited number of occasions, doing work including planting, weeding and spreading of chip bark in garden areas. He said he was unable to work with his arms above shoulder height and the activity caused increased symptoms, particularly to his left shoulder. He said he was only able to do one or two days of casual work and would then have to rest.
32 It is clear the loss of the plaintiff’s marriage had a significant effect upon him. His wife left with their three children, although he still sees his children on access visits. I accept that the loss of his marriage was one of the factors involved in the loss of his job with Synergy. Subsequently, he formed a relationship with Ms Paula Tyrie and the couple have lived together since July 2009. Ms Tyrie provided an affidavit generally supportive of the plaintiff’s complaints of pain, limitation and restriction.[22]
[22] PCB 17A
33 In June 2009, he commenced seeing Dr Andrew Pearce, general practitioner, of Mornington. Further surgery to the left shoulder was undertaken by Mr Campbell Brown in January 2010. A further MRI scan of 27 July 2009 was reported to show cystic degeneration and longitudinal split of the biceps tendon with an intrasubstance tear of the subscapularis insertion with associated tendonitis. Mr Campbell Brown’s surgery on this occasion was an arthroscopic exploration of the left shoulder and a tenotomy of the biceps tendon with the insertion of a screw. Further, a subacromial decompression with acromioplasty also took place. Other aspects of the shoulder inspected upon surgery were said to be normal.
34 According to a final report of Mr Campbell Brown,[23] when seen four months after surgery, the plaintiff complained that his main problem was neck pain. Mr Campbell Brown said the biceps tenodesis had failed, although he had normal strength in the left arm. He suggested continuing with conservative treatment, including a rehabilitation program. It appears from the opinion of Mr Campbell Brown and other practitioners that further surgery is not recommended.
[23] PCB 83
35 A further MRI scan of the left shoulder was performed on 17 August 2010.[24] This showed degenerative tearing through the superior glenoid labrum and very small posterior labrum. There was further possible linear tear through the biceps tendon.
[24] PCB 22
36 In 2010, the plaintiff’s medication, as prescribed by Dr Pearce, included Endone and Panadeine Forte. Dr Pearce noted a significantly decreased range of movement in the left shoulder. After each bout of surgery, the plaintiff undertook physiotherapy.
37 In August 2010, the plaintiff was referred to a musculoskeletal physician, Dr Robert Gassin. He commenced the plaintiff on cortisone treatment and recommended continued twice-weekly physiotherapy. To Dr Pearce in February 2011, the plaintiff complained of a sore left shoulder, poor range of movement and an inability to elevate his arm beyond 90 degrees. He was then taking analgesia, including Tramal.
38 Over the period since injury, and particularly since his separation, the plaintiff had become distressed and despondent. According to Dr Pearce, the causes included chronic pain in the shoulders, the breakup of his marriage and financial stresses in his life. The plaintiff also reported difficulty with sleeping. Dr Pearce referred him to Mr Nigel Broughton and he was commenced on Pristiq, an antidepressant. According to the final report from Dr Pearce,[25] as at June 2011, he said the plaintiff was suffering from a painful left arm with reduced function. He also had lowered mood, a depressive illness and chronic pain syndrome. He had referred the plaintiff to a psychologist for treatment. He said that the plaintiff’s physical injuries alone precluded or restricted him undertaking social, domestic and recreational activities, leaving him basically a “one-handed person at the moment”.[26] He thought the plaintiff would require ongoing management with medication, psychology, counselling and pain management. He thought the prognosis was poor for any real improvement.
[25] PCB 47
[26] PCB 47
39 At the present time, the plaintiff says that he sees Dr Pearce monthly and is still having regular physiotherapy to his left shoulder. He sees a psychologist every three months or so. He last saw Mr Broughton, orthopaedic specialist, three months ago and no further surgery was recommended. He takes Nurofen Plus and Tramadol on a daily basis for the pain in both shoulders, which he says is constant. He says he has significant limitations on lifting weights in his right arm, but more particularly his left. He says gardening activities are restricted. He has not undertaken any work since the short period of gardening in 2009. He said that his sleep is affected and he is entirely unable to enjoy working on his cars. He has sold all the cars and the mobile discotheque business which he said he is no longer able to do, aside from one or two occasions over the last couple of years. He says he suffers difficulties with driving and would be unable to do any work which would involve regular driving. He could not work as a painter.
40 In evidence, the plaintiff said that in relation to the job at Synergy, he would still be able to do the work except for the driving, although there were some aspects with which he had difficulty. He accepted that he could do the light work but any heavy lifting increased the pain in his arms.[27] In relation to the gardening work, he said he thought he might be able to do that work for possibly fifteen to twenty hours per week. The pay at that time was $20 per hour.[28]
[27] T 36
[28] T 38
41 Of recent times, he has not applied for any jobs because he did not think he would be able to cope.[29] He thought he could do a bit of casual work on light duties, possibly fifteen to twenty hours per week. He said he would be willing to work as a radio dispatcher, providing he was trained.[30] He said that he might be able to do work as a driver delivering small parcels up to twenty hours per week[31] and as a despatch clerk, providing he did not have to do any heavy or repetitive lifting.[32]
[29] T 40
[30] T 42
[31] T 43
[32] T 44
42 The plaintiff somewhat qualified his answers to questions in cross- examination relating to work capacity, in the course of his re-examination. He said there would be various aspects of garden work which would be difficult or beyond him.[33] Any work at or above shoulder height caused pain in his shoulders.[34] He said he would not be able to do work on a full-time basis.[35] Carrying significant items of plant or equipment, working in a plant hire company, would be beyond him.[36] He said that he did not think he could do various aspects of clerical work as he had no training.[37]
[33] T 50-51
[34] T 51
[35] T 51
[36] T 51-52
[37] T 52
Medical and Vocational Evidence from Consultant Practitioners
43 The plaintiff was examined by Mr Russell Miller, orthopaedic surgeon, in November 2010.[38] The plaintiff complained of pain and discomfort in both shoulders, the left more than the right. Having examined the radiology, Mr Miller concluded the plaintiff had residual capsulitis and frozen shoulder, the symptoms worse on the left. Noting that the onset of left shoulder symptoms was later than the date of the injury, Mr Miller thought it was likely the plaintiff had injured his left shoulder in the event of March 2006 and that also the left shoulder symptoms developed because of over use of that shoulder to protect the right. Mr Miller considered the plaintiff was not able to return to his pre- injury work and would have ongoing restrictions, including no repetitive arm actions, no use of the arms above shoulder level and no lifting of weights beyond five kilograms. He thought that those restrictions were likely to be permanent and a return to the workforce would be problematic. He said:[39]
“I do not envisage he could return to pre-injury duties on a part-time basis
to any significant extent.”
[38] PCB 49
[39] T 55
44 Having been provided with reports of doctors who saw the plaintiff for right shoulder problems in 1997, Mr Miller concluded the plaintiff did have a right shoulder problem around 1997, probably in relation to his right biceps tendon. He noted the plaintiff did not require treatment or surgery at the time. He thought the right shoulder problems of 1997 were of minimal relevance to the plaintiff’s then current clinical status. He considered the prognosis for the left shoulder as fair to poor.
45 The plaintiff was examined by Mr Roger Westh, orthopaedic surgeon, in September 2009. At that time, the plaintiff complained of difficulties with sleeping because of the ache in both shoulders. The plaintiff said he could no longer work at his hobby of restoring cars. He said he thought he could do light work, possibly in a nursery, without lifting significant weights or lifting overhead. Mr Westh, in summary, said that the plaintiff had developed painful and restricted movement in both shoulders following the incident of March 2006. He thought that the plaintiff had features of chronic bilateral rotator cuff tendonopathy, which he said was both significant and permanent. He said the plaintiff could not return to his former occupation as a driver or to perform any work of a similarly heavy nature. He thought he would be permanently restricted to light duties and would need help with retraining and rehabilitation. The report is somewhat old and undertaken before the last surgery to the plaintiff’s left shoulder.
46 The plaintiff was seen on a number of occasions by Dr Robyn Horsley, occupational physician.[40] Having been provided with a history of the plaintiff’s right shoulder problems in 1997, she noted the diagnosis at that time was chronic bicipital tendonitis. She said that was a quite different problem from what the plaintiff was suffering when she examined him in 2010. She considered that the plaintiff, after surgery, had developed chronic residual adhesive capsulitis, worse on the left side. She said there was an element of disuse and possibly an element of Complex Regional Pain Syndrome. Any return to work by the plaintiff would involve a range of restrictions in the use of his right and left arms.[41] She said he was permanently unfit for his previous work as a painter and would have difficulty truck driving. She thought the medication he was then taking would affect his concentration and attention. She noted his education to Year 9, that he had no computer skills and the opportunity for redeployment into another area was very limited. She said his prognosis for a return to work was guarded and that he would have great difficulty returning to suitable employment without a reduction in his then current level of medication.
[40] PCB 113-132
[41] See various restrictions PCB 131
47 On behalf of the defendants, the plaintiff was seen by Mr Anthony Buzzard, surgeon, in October 2006, November 2010 and June 2011.[42] In his most recent report, Mr Buzzard said the plaintiff complained of discomfort and limitation of movement in the left shoulder, but that his right shoulder was “doing well – a little bit of discomfort but it’s doing well”. Mr Buzzard considered that over the period he examined the plaintiff, his right shoulder improved and was likely to further improve. On the question of the late onset of left shoulder pain, Mr Buzzard accepted that it was reasonable that the left rotator cuff problem was probably related to his work.[43] He said he had made a poor recovery from surgery to his left shoulder and that that situation was not likely to change. In his report of November 2010,[44] he said:
“As far as his employment capacity is concerned, he is not able to work in a job requiring a range of movement of the shoulders greater than that demonstrated above. This would preclude him from working in his pre- injury employment as a truck driver or earlier job as a house painter. His employment options would be very limited given his previous employment history. He would be capable of sedentary work if such work could be found for him.”
[42] DCB 15-32
[43] DCB 30
[44] DCB 30
48 Mr Buzzard’s opinion in respect of work capacity appeared to be more optimistic in his final report of June 2011.[45] In that report, he said:
“So far as his employment capacity is concerned, he is not able to work in a job requiring a range of movement of his shoulders greater than that which is demonstrated above. He could carry out suitable employment within those restrictions.”
[45] DCB 23
49 The plaintiff was examined by Mr Ian Jones, orthopaedic surgeon, in July 2007 and May 2008.[46] He was not satisfied the injury to his left shoulder was work-related given that it came on after the event of March 2006. He thought the plaintiff did have a work capacity and had not suffered a total loss. His opinion in that regard is of limited benefit given he has not examined the plaintiff after the surgery in 2010.
[46] DCB 34-42
50 The plaintiff was examined by Mr Max Wearne, surgeon, in March 2010.[47] He noted slight wasting of the deltoid muscle on the left side, and a significantly restricted range of movement of the shoulder. Having examined the radiological findings, he said:
“I was struck by the comparatively trivial nature of his injuries. … The SLAP lesion of his right shoulder turned out to be a reasonably mild lesion when seen arthroscopically, while the SLAP lesion of the left shoulder was not visible arthroscopically. The surgical procedures have consisted largely of arthroscopic debridement and subacromial decompressions, except for the last procedure when the long head of biceps of the right [should be left] shoulder, was tenodesed.”[48]
[47] DCB 44-54
[48] DCB 49
51 He concluded that there was a strong psychogenic element to the plaintiff’s presentation. However, he considered the plaintiff had developed adhesive capsulitis in the left shoulder. He said it would be difficult for the plaintiff to return to employment, no matter how light, but this was because of psychological reasons, and not physical incapacity. From a physical point of view, he said that the plaintiff would be able to undertake work such as that of a despatch clerk in a transport firm, but that he would “find all sorts of excuses for not accepting such a job”. He is the only doctor to describe the plaintiff’s shoulder injuries as trivial.
52 Mr Stephen Stern, psychiatrist, saw the plaintiff in October 2009, and diagnosed him suffering an Adjustment Disorder with Depressed Mood.
53 Each of the parties tendered into evidence vocational assessment reports. On behalf of the plaintiff, Ms Margaret Leitch, occupational therapist of Evidex, assessed the plaintiff’s employment prospects.[49] She noted that from the medical reports, the plaintiff should avoid tasks which required frequent or forceful use of the arms, particularly at or above shoulder height, and any moderate to heavy manual handling. She said the plaintiff did not have the capacity to return to his pre-injury occupation as a truck driver, or as a painter. She noted he had limited literary and computer skills. Given his functional capacity, his education and work experience, she said that there were no occupations found suitable for him in the open labour market.
[49] PCB 133
54 On behalf of the defendant, a report of CoWork Pty Ltd (“CoWork”), undertaken by Joe Keath, labour market consultant, and Nandi Moffett, physiotherapist, dated 27 November 2009, was tendered. The report identified a number of occupations to which it was said the plaintiff would be suited, including:
• telecommunications technician;[50] •
hire controller; that is, a person who works in a business hiring plant and equipment; [51]
• radio dispatcher.[52] [50] DCB 84
[51] DCB 88
[52] DCB 91
55 The report has two rather curious aspects. Firstly, in support of the proposition that the plaintiff would be able to undertake work as a disc jockey, a professional disc jockey was interviewed and provided information.[53] That part of the opinion is of little relevance and unhelpful. Further, the report purports to give expert medical advice to the effect that if the plaintiff were to stop smoking, his shoulder symptoms may reduce. That part of the opinion is nonsense. Moreover, the opinion is given before the plaintiff’s latest bout of surgery.
[53] DCB 74
56 I was not particularly assisted by either of the vocational assessments and I am of the view that the plaintiff’s work capacity falls to be determined by expert medical opinion.
Credibility of the Plaintiff
57 I had the opportunity to assess the plaintiff in the course of cross-examination. I found him to be an honest witness giving a fair account of his problems. He made the concessions in cross-examination in a fair and straightforward manner. He was criticised by Mr Middleton for having little, if any, recollection of his shoulder problems in 1997. However, given that he resumed full-time duties after that time, I accept that that was more due to the modesty of the problems at the time rather than any intention to evade the issue.
58 No major credit issues were put to the plaintiff. I generally accept his complaints of pain and problems, particularly to his left shoulder, and accept the veracity of the histories provided to the doctors.
Submissions of the Defendants
59 Mr Rattray submitted that the plaintiff could not aggregate the left and right shoulders as the one body function. He said each must be treated separately. Thus, in assessing the plaintiff’s work capacity, regard should be had only to the injury to the left shoulder. He said that the plaintiff’s “without injury” earning capacity was agreed at $50,000 per annum, or $962 gross per week. He noted that after the injury, the plaintiff returned to work on light duties with Toll and, aside from time off for surgery and rehabilitation in 2006, worked on restricted duties until 2007. He then undertook work for Synergy, working in lighter duties, until he abandoned the job in 2009. He said that the plaintiff, in evidence, admitted that he did have the capacity to work in lighter duties and on a full-time basis, and this was reflected in his work both for Toll and for Synergy.
60 Given the plaintiff’s past work experience, he said he did have the capacity to undertake full-time duties in the various areas as set forth in the CoWork report, including work as a Telecom technician, hire controller, or radio dispatcher. The evidence from that report indicated that if he worked in full- time employment in any of those jobs, he would not achieve the 40 per cent loss of earnings the legislation required.
61 Mr Rattray submitted that of recent times the plaintiff had given little, if any, explanation for his lack of pursuit of employment. He gave no credible explanation as to why he had not applied for jobs, or even looked for jobs. He relied on the medical opinions, particularly of Messrs Buzzard, Jones and Wearne, to the effect that the plaintiff had work capacity. In all the circumstances, he submitted that I could not be satisfied, the onus being upon the plaintiff, that he had suffered a 40 per cent loss of earning capacity.
The Right and Left Shoulders as the One Body Function
62 In submissions, I was taken to a range of decisions of Judges of this Court to determine whether injuries to both limbs constituted the one body function. The issue received attention and analysis by her Honour Judge Jenkins in Karovska v Parker Williams Pty Ltd.[54] In that case, her Honour considered an injury to both hands. Her Honour traced the law through a number of earlier decisions, commencing with Lu v Mediterranean Shoes Pty Ltd.[55] Her Honour found that she could consider the injury to both wrists as the one body function, in particular, because the injury occurred through a gradual work process over a period of time and was caused by repetitive use of her wrists in a particular way. Her Honour said that the injury occurred by the performance of the one body function in the course of that repetitive work.
[54] [2008] VCC 1476
[55] (2000) 1 VR 511
63 In De Luca v Pinkney,[56] I analysed an injury to the left and right knees. Having considered the authorities of this Court to that point,[57] I concluded that each knee constituted a separate body function. I said:
“Each leg has a distinct and separate function to the other. There are many activities that require the use of both legs. In fact there are many activities that require the use of both legs, both arms and the human torso. An example is running. However the phrase ‘body function’ seems to me to indicate a specific body part which has a specific function to perform. It may be, for example, the brain, the liver, the spine, the knee or the elbow. It may be arguable whether an injury suffered in the same incident to a hand and elbow could be combined and regarded as the loss of the function of the arm as a whole. However, I see the situation as being different with separate arms or legs. It does not seem to me to be appropriate to identify a particular activity, then identify which parts of the body are involved in its execution, and then consider those parts of the body as undertaking the one body function. The legislation envisages, in my view, a function to be a discrete part of the body functioning in some specific way.”[58]
[56] [2007] VCC 1307
[57] paragraph 35
[58] paragraph 37
64 With respect to Judges of this Court who have come to a different conclusion, in my view, the plaintiff cannot aggregate the injury, on the one hand to his right shoulder, with the injury to his left, even accepting the injuries arose out of the one incident. It is likely the issue will remain contentious until our Court of Appeal pronounces on the subject. I am of the view that a body function, as referred to in the definition of “serious injury” in s.134AB(37) of the Act, refers to a separate part of the body which performs a particular function. It may be an arm or a leg or the spine or some other part of the body. The authorities are clear that one cannot aggregate body functions. In the present case, I am of the view the plaintiff cannot aggregate the function of the left shoulder and the function of the right.
65 Mr Harrison accepted that if he could not rely on the left and right shoulders as the one body function, he would rely upon the left, which was the more seriously affected of the two.
Was the Injury to the Left Shoulder Suffered in the Course of Employment?
66 I am satisfied on the balance of the evidence that the injury to the plaintiff’s left shoulder, notwithstanding the onset of symptoms occurred some months after the incident of March 2006, was related to the plaintiff’s employment.
67 Most of the practitioners who have examined the plaintiff accept that the injury to the left shoulder is work-related. Even Mr Buzzard, who reported on behalf of the defendants, concluded that that was likely to be the case, although he had some reservations. The only practitioner with a decidedly different view is Mr Jones.
68 In particular, the plaintiff’s general practitioner at the time, Dr Fitzgerald, having treated the plaintiff over the whole of the relevant period, concluded that his left shoulder injury was “clearly” work-related, even although there was no specific injury.[59] Although the focus of the plaintiff’s attention was that injury occurred in the incident of 16 March 2006, the defendants did not seek to argue in submission that the plaintiff was restricted to an injury to the left shoulder which occurred on that date, in order to succeed in the application. I am unable to say with certainty as to whether the plaintiff’s left shoulder injury occurred on that date, or over a period of time, or even was possibly contributed to by using the left shoulder so as to save the right. Regardless, I am satisfied the injury to the left shoulder arose out of the course of the plaintiff’s employment.
[59] PCB 32
Conclusions
69 Accepting the plaintiff as a witness of truth, I accept his complaints of pain and restriction in the left shoulder, as set forth in his affidavits and the histories provided to the medical practitioners. He has had two bouts of surgery to the left shoulder and is left with constant pain and restriction of movement. Further, I accept there is significant restriction in his recreational and domestic activities. I accept that he is unable to enjoy his pastime of mechanical work on cars and that this is a significant loss to him. He takes regular significant medication for his pain, has undergone a raft of treatment, including physiotherapy and surgical procedures. In all these circumstances, I am satisfied the plaintiff achieves the “very considerable” level the legislation requires, in respect of pain and suffering.
70 The real question in this application is to assess the plaintiff’s loss of earning capacity. The plaintiff remained working for Toll in restricted duties for a considerable period after the incident, save for periods of rehabilitation related to the surgery. He then went on to further employment with Synergy, undertaking light duties repairing telephone boxes. He frankly acknowledged he was capable of doing this work, and the real reason he ceased employment was that he could not cope with the driving from his home in Geelong to Ballarat.
71 He has not worked now for several years, and has done little to seek out employment.
72 I accept that the breakdown of the plaintiff’s marriage had a significant effect upon him and was one of the contributing factors to depression which has required treatment and medication. I further accept that his chronic pain was also a contributing factor. However, I do not accept the opinion, particularly of Mr Wearne, that the physical nature of his injury is trivial and that the presentation has a large psychogenic element. I prefer the opinion of those doctors who have significant reservations about the plaintiff’s work capacity. There is little issue the plaintiff would be unable to return to work as a truck driver, or as a painter. If the plaintiff was to return to work, it would be with significant physical restrictions. Mr Miller considered the prospect of return to the workforce as problematic.[60] Mr Westh, although his report was provided before the most recent surgery, considered the plaintiff would be permanently restricted to light duties and only then after retraining.[61] Dr Horsley considered the plaintiff’s prospects for employment as guarded. She noted the plaintiff’s consumption of medication and very limited experience and knowledge of clerical and administrative work.[62]
[60] PCB 54
[61] PCB 112
[62] PCB 132
73 Although in the course of cross-examination the plaintiff did admit that he thought he had the capacity for light duties, when an overall assessment of his evidence is undertaken, I accept his assessment that he would be able to undertake light duties, but only for approximately fifteen to twenty hours per week. He has limited education, and his only real experience in the workplace has been in driving trucks, and as a painter. Any employment would thus require significant retraining. To a degree, he has become despondent because of his chronic pain and loss of self-esteem. While that despondency does reflect in a lack of endeavour to seek out employment, I am satisfied that the real problem facing him is one of chronic pain to his left shoulder. I accept that it affects his sleep and requires medication. When factoring into account all of the criteria for “suitable employment”, as set forth in s.5 of the Act, I assess the plaintiff’s loss of work capacity at more than forty per cent when an assessment is made of his pre-injury work capacity, and that of the current time. While he may have some current work capacity in restricted duties, I accept his assessment that it is no more than fifteen to twenty hours per week. As such, he satisfies the criteria as prescribed by the Act.
74 The plaintiff’s application succeeds. I shall make consequent orders.
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